Kotler on Sovereign Immunity & Preemption

Martin A. Kotler (Widener University - School of Law) has posted Shared Sovereign Immunity as an Alternative to Federal Preemption: An Essay on the Attribution of Responsibility for Harm to Others (Hofstra Law Review, Forthcoming) on SSRN.  Here is the abstract:

Beginning with the Supreme Court's 1992 decision in Cipollone, courts have engaged in the practice of parsing the preemption language of federal legislation ostensibly to determine whether Congress intended to preclude the possibility of imposing liability on manufacturers under state products liability law. This article argues that congressional intent is largely a fiction and the cases based on it have been improperly decided. Nevertheless, the results reached in many of the cases are intuitively appealing. The reason for this is that the results commonly are based on the long-standing fairness principle that one should not be subjected to liability in cases where one's conduct was mandated by legislative or regulatory command. The article goes on to argue that by deciding these cases on the basis of shared sovereign immunity, courts can retain the attractive parts of the decisions while simultaneously moving away from the obvious fiction of congressional intent.